The longest-running pension dispute at Veterans Affairs Canada has ended unhappily for a British Columbia family. A federal judge expressed sorrow but dismissed compensation for 1954 injuries suffered by an RCAF officer.
“I say to people, you must never give up,” said Carol Nicol, widow of pension claimant Flying Officer Robert Nicol of Qualicum Beach, B.C. “The judge seemed sympathetic and I had my spirits lifted, and then when I read the decision, he just recited arguments the government has made all along. Oh, I can’t even tell you the disappointment.”
Federal Judge Yves de Montigny rejected a claim for benefits that saw six decades’ worth of lost appeals over a narrow definition of whether Nicol was on duty when he suffered injuries. The fighter pilot left the air force in 1957 to become a realtor; he died of cancer in 2003. “In the last year of his life he was still calling the appeal office in Charlottetown,” Mrs. Nicol said. “He felt he had been wronged and was entitled to his pension. Bob always felt they did not honour what happened to him.”
Nicol was hurt in an auto accident near Zweibrücken, Germany after driving home with his commanding officer and other colleagues from a July 1 squadron picnic. Nicol, a passenger, was thrown from the car after the driver fell asleep and veered into a tree. “He was in a full body cast for almost a year,” said Mrs. Nicol; “He had seven major surgeries.”
Mrs. Nicol said numerous broken bones left her husband with lifelong complications. “He had extreme pain for years,” she said. “Walking was difficult for him. He would come home from work and just look grey.”
Nicol unsuccessfully appealed for benefits before various federal boards and tribunals in 1958, 1959, 1960, 1974, 1975, 1976 and 1978. Government attorneys argued each time his injuries were “not pensionable” by claiming he was technically off duty at the time of the accident.
“It just seemed like it was rubber stamped,” Mrs. Nicol said. “It was really bad. After Bob died I just couldn’t handle it, to be honest. The thought of pursuing this too much; but I only took it up because the Royal Canadian Legion and the newspapers said if you had an outstanding case, it was worthwhile to ask for reconsideration.”
Fell In A “Grey Zone”
Judge Montigny agreed the Nicol case fell in a “grey zone” but added: “A line has to be drawn”; “There is no dispute between the parties that the severe medical disabilities that afflicted the applicant’s husband flowed from his injuries sustained in the car accident that occurred on July 1, 1954. The only real issue is whether these injuries ‘arose out of or were directly connected’ with military service”, the judge wrote.
“The fact he had the misfortune to hitch a ride with fellow officers in a car whose driver dozed off and had an accident does not make up for this lack of connection,” wrote Montigny. “The Armed Forces played no role in Mr. Nicol’s choice to come to the picnic as a passenger in another officer’s car.”
The Court would not accept as evidence a letter from a former vice marshal of the 413th squadron that Nicol was on duty at the time; and dismissed an official history of the squadron that noted the 1954 picnic, suggesting attendance was compulsory.
Veterans Ombudsman Guy Parent would not comment on specifics of the Nicol case, but said the lengthy appeals pointed to a common difficulty in pension disputes. “The complications in these types of cases is the determination of being ‘on duty’,” Parent said. “Fortunately we have come a long way in defining on-duty and off-duty.”
“Today personnel on a mission are considered on-duty 24 hours a day,” Parent said. “I just hope today with more liberal interpretations people will not go through this again.”
Mrs. Nicol described the decades of appeals as exhausting but expressed no regrets for pursuing the case. “People give up because it takes up so much energy to take this on,” she said. “I went to this extent in memory of my husband, and to see justice for all those veterans who are in the same position.”
“I feel our veterans should get the benefit of the doubt,” said Mrs. Nicol. “If everybody did what Bob did, hopefully we would all make a difference.”
Mrs. Nicol noted the original determination of her husband’s status was made three days after the accident, as the then-20 year old lay in a hospital bed at Landsthul, Germany. “They questioned him when he was still sedated,” she said. Federal Court acknowledged Nicol “may still have been in a state of shock” when he was interviewed and “may not have fully grasped the consequences of his statement”; “His testimony and that of his fellow passengers is nevertheless very relevant in determining whether attendance was compulsory,” the judge said. The Nicols had appealed for a pension worth some $1,000 a month.
By Tom Korski